De Melo v. Gooding

In the matter of De Melo v. Gooding the parties married in 1997 and separated in 2003. There is one child of the marriage. In 2005, after being separated for a little over two years, the parties entered into a partial separation agreement. The agreement provided that the parents would exercise a shared parenting regime. In the agreement, the parties specifically acknowledged their respective parenting autonomy when child was in each parent’s care. The parties also created a schedule for the time that each of them was with the child. The agreement and the schedule were ultimately turned into a consent order.

The Mother later brought a motion in which she claimed 22 heads of relief, 15 of which had to do with the parenting of the parties’ son, who was now 9 years old. The Mother was partially successful in brining her motion. In deciding whether the Mother should be granted the sought relief, the court employed the test of whether there had been a material change in circumstances with respect to the change that was sought in the order.

In this case, the father had resisted use of a parenting coordinator to resolve minor parenting differences between the parties. Most of the issues could have been resolved through a parenting coordinator but due to the father’s reluctance, the issues were not resolved this way and instead, were further exacerbated. To that end, the court ordered that the Mother would be able to select which overnight she wished to have with the child and neither party was restricted to selecting a regular weekday night. With respect to any future disputes, the court determined that if the parties could not agree on appropriate extra-curricular activities for the child then that may be a basis to change the currently practiced custody and access regime.

Essentially, the court determined that the failure of processes established by the parties constituted a material change of circumstances which warranted the intervention of the court. To that end, this case is useful as it shows the extent to which parties can compel the court to intervene when they fail to abide by mutually agreed upon terms. While the family court promotes that parties be involved in the process of crafting their own solutions, where parties fail to implement the agreement, the court is forced to become involved.

Comment (1)

Although we may be capable of many things as lawyers, we have not yet figured out how to predict the future. As such, over time the agreements or orders we draft or obtain for our clients will not always be as useful as the day they were signed or granted as we cannot see all ends.

This decision is a classic case of how the passage of time can constitute a material change in circumstances. After the lawyers, judges and court rooms disappear from a family dispute and some semblance of normalcy sets in, the needs, wants and lives of you and your children will change, so naturally the terms of any agreement or order you have may need to change as well. This case demonstrates how you should not be afraid to consult with a lawyer as to whether the passage of time has made your agreement or order no longer workable.